No. 27039-1-IIThe Court of Appeals of Washington, Division Two.
Filed: May 28, 2003 DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION
Appeal from Superior Court of Lewis County Docket No: 00-1-00303-4 Judgment or order under review Date filed: 02/16/2001
Counsel for Appellant(s), Robert Mason Quillian, Attorney at Law, 2633 Parkmont Ln SW Ste a, Olympia, WA 98502-5793.
Counsel for Respondent(s), J. Andrew Toynbee, Attorney at Law, M/S Pr001, 360 NW North St, Chehalis, WA 98532-1925.
QUINN-BRINTNALL, A.C.J.
Olera Workman struck and killed Sam Williams while he was working as a highway construction flagger for the Department of Transportation (DOT) on State Route 12 in Lewis County. A jury found her guilty of vehicular homicide, a violation of RCW 46.61.520(1)(c), and the court sentenced her to 20 months’ confinement.
Workman appeals, claiming that (1) the evidence was insufficient to establish the gross negligence required to support the charge; (2) she received ineffective assistance from her counsel; and (3) the prosecutor committed misconduct when he wore flagger clothing during closing argument. Finding no reversible error, we affirm.
FACTS
Workman struck flagger Williams with her car as he was signaling traffic on State Route 12 in February 2000. He died at the scene. At the point where Williams was hit, SR 12 is a two-lane road, with traffic heading east-and westbound. A DOT crew was repairing a sign on the westbound side of the road and, because their truck encroached on the westbound lane, two flaggers were set up to direct the westbound traffic into the eastbound lane to avoid the truck. The flaggers set up three signs warning of the work crew and flaggers, at 500 feet apart, the first one 1,500 feet from the work site and flaggers. The first and third sign showed a picture of a flagger, the international symbol that a flagger is ahead, while the middle sign, 1,000 feet from the flagger, read `lane closed ahead.’
Sometime around noon, Workman was traveling eastbound on SR 12 at between 55 and 60 miles per hour. The driver immediately behind Workman on SR 12, Patty Marine, testified that her cruise control was set at 57 mph as she followed Workman the 12 to 15 miles from Interstate 5 at a steady distance of three car lengths behind Workman. Marine turned off her cruise control when she saw the first construction sign and, as she slowed, the distance between her car and Workman’s increased steadily. It appeared to her that Workman did not slow at all in response to the signs.
As Workman approached the construction site, the flaggers were letting the westbound traffic through in the eastbound lane. Therefore, Williams was holding up the `stop’ side of his stop/slow paddle to the drivers like Workman in the eastbound lane. Testimony of the various witnesses placed Williams anywhere from being completely outside of the lane of travel to being in the middle of the eastbound lane.
Workman struck Williams without braking or swerving. Workman admitted to the emergency medical technician (EMT) who responded to the accident that she did not see Williams, and she said that she was adjusting her radio when she hit him.
We address three issues: First, is the evidence, taken in the light most favorable to the State, sufficient to convince any jury beyond a reasonable doubt that Workman’s driving was grossly negligent and that it caused Williams’s death? Second, was it prosecutorial misconduct to wear a flagger outfit similar to that worn by the deceased during closing argument? Third, was Workman denied effective counsel?
ANALYSIS
Sufficiency of the Evidence
In reviewing a claim of insufficient evidence, this court views the evidence in the light most favorable to the State and determines whether any rational trier of fact could have found the essential elements of the charged crime beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221-22, 616 P.2d 628 (1980).
A driver is guilty of vehicular homicide if she proximately causes the death of a person
(a) While under the influence of intoxicating liquor or any drug . . .
(b) In a reckless manner; or
(c) With disregard for the safety of others.
RCW 46.61.520(1). The State charged Workman with the third alternative disregard for the safety of others. Disregard for the safety of others requires a showing of more than ordinary negligence. Workman challenges the sufficiency of the evidence to prove disregard for the safety of others and proximate cause.
(a) Disregard For The Safety Of Others
Workman first argues that the evidence supports a finding of ordinary negligence only, not a conscious disregard for the safety of others, as required.
The court defined `disregard for the safety of others’ for the jury as an aggravated kind of negligence or carelessness, falling short of recklessness but constituting a more serious dereliction than ordinary negligence. Ordinary negligence is the failure to exercise ordinary care. Ordinary negligence is the doing of some act which a reasonably careful person would not do under the same or similar circumstances or the failure to do something which a reasonably careful person would have done under the same or similar circumstances. Ordinary negligence in operating a motor vehicle does not render a person guilty of vehicular homicide.
Clerk’s Papers (CP) at 41.
This instruction is consistent with case law interpreting the `disregard for the safety of others’ element. See e.g. State v. Eike, 72 Wn.2d 760, 766, 435 P.2d 680 (1967) (explaining that to drive with disregard for the safety of others is a greater and more marked dereliction than ordinary negligence, not including the `many minor inadvertences and oversights which might well be deemed ordinary negligence’).
Here the evidence, taken in the light most favorable to the State, shows that Workman passed three construction signs warning of the work site and the presence of flaggers. The first sign was 1,500 feet from the work site. Despite the fact that Workman had more than 1,500 feet in which to do so, she never slowed her vehicle. She did not brake or take any evasive action in an attempt to avoid hitting Williams. Workman’s statements to responding paramedics, that she did not see Williams and that she was adjusting her radio, together with evidence indicating that Workman was eating and reading her mail while driving 55 to 60 miles per hour on a two-lane highway, support the properly instructed jury’s finding that Workman drove with disregard for the safety of others and that her negligent driving was aggravated.
(b) Proximate Cause
Workman also argues that the evidence shows that Williams was not following proper flagging procedure and that he was standing in the lane of travel and not paying attention to the traffic. Therefore, Workman asserts Williams’s actions constituted a supervening cause of the accident, defeating the proximate cause element.
It is well established that contributory negligence is not a defense to negligent homicide. State v. Judge, 100 Wn.2d 706, 718, 675 P.2d 219
(1984). Evidence of contributory negligence may be material, however, to whether the defendant’s negligence was a proximate cause of the death. Judge, 100 Wn.2d at 718. To escape liability, the defendant must show that the contributory negligence was a supervening cause without which her negligence would not have caused the accident. Judge, 100 Wn.2d at 718.
The evidence showed that Williams was standing in the eastbound lane of travel, contrary to the directions in the Manual on Uniform Traffic Control Devices (MUTCD). The MUTCD states that flaggers should not step into the lane of travel until traffic has stopped; but another flagger, Jim Gerwig, testified that flaggers typically stand a foot inside the fog line to be better seen by drivers. Gerwig admitted that Williams did not follow the rules according to the MUTCD regarding where to stand.
The judge instructed the jury on the cause element as follows:
To constitute vehicular homicide there must be a causal connection between the death of a human being and the criminal conduct of a defendant so that the act done or omitted was a proximate cause of the resulting death.
The term `proximate cause’ means a cause which, in a direct sequence, unbroken by any new independent cause, produces the death, and without which the death would not have happened. There may be more than one proximate cause of a death.
CP at 42.
Workman may have established that Williams was contributorily negligent for standing in the roadway, but the evidence established that Williams’s actions were not a supervening cause of his death. Moreover, the ultimate question of proximate cause is for the jury unless the undisputed facts and the inferences therefrom are plain and not susceptible of reasonable doubt or difference of opinion. See State v. Gantt, 38 Wn. App. 357, 359, 684 P.2d 1385 (1984). Here the facts were disputed, and the instruction a proper statement of the law. Therefore, the determination of proximate cause is supported by the evidence and properly a matter resolved by the jury.
Prosecutorial Misconduct
At least three of Williams’s co-workers testified about the clothes he was wearing at the time of the accident, explaining that they clearly remembered the white rain slicker he wore because it was brand new and they had been teasing him about it. Williams also wore a reflective vest and a hard hat and he was holding up the red stop/slow paddle.
Items identical to those Williams wore the day he was struck were admitted as exhibits and, near the beginning of his closing argument, the prosecutor put on the slicker, vest, and hard hat and held the paddle.[1]
Defense counsel did not object. At least twice the prosecutor incorporated the clothing he was wearing into his argument, emphasizing that the victim was dressed as he was, and, thus, was clearly visible to any driver.
Workman alleges that it was misconduct for the prosecutor to wear the clothing during his argument, arguing that the theatrical conduct was designed to appeal to the sympathy of the jury in a very emotional case. In making a prosecutorial misconduct challenge, the defendant must show that the prosecutor’s conduct was both improper and prejudicial.[2]
State v. Finch, 137 Wn.2d 792, 839, 975 P.2d 967, cert. denied, 528 U.S. 922 (1999). A defendant establishes prejudice if there is a substantial likelihood the misconduct affected the jury’s verdict. Finch, 137 Wn.2d at 839. If the defendant fails to object to improper conduct, it is considered waived unless it is `so flagrant and ill-intentioned that it evinces an enduring and resulting prejudice that could not have been neutralized by an admonition to the jury.’ State v. Stenson, 132 Wn.2d 668, 719, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008 (1998).
A prosecutor has wide latitude to draw reasonable inferences from the evidence in closing argument. See State v. Madry, 12 Wn. App. 178, 183, 529 P.2d 463 (1974), review denied, 85 Wn.2d 1004 (1975). As in Madry, our review of the record here indicates that the prosecutor was using the exhibits in a manner consistent with the testimony. He was wearing the clothing to demonstrate that a motorist could not have missed seeing Williams absent a conscious disregard for her duty as a driver. As such, the prosecutor’s conduct was a demonstrable argument based on the evidence and was neither ill-intentioned nor designed to prejudice the jury. Cf. State v. Belgarde, 110 Wn.2d 504, 507, 755 P.2d 174 (1988) (finding prosecutorial misconduct when plaintiff called the group the defendant associated with as madmen and butchers and invited the jury to consider facts outside the record).
Ineffective Assistance
To establish ineffective assistance of counsel, the claimant must show (1) deficient performance upon review of the entire record and (2) a reasonable probability that, except for counsel’s deficient performance, the result of the proceeding would have differed. State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).
(a) Failure to Object to Testimony About Cause
Workman claims that her counsel should have objected to one of the prosecutor’s questions to a defense witness because the record demonstrates that the judge would have sustained the objection, thus preventing the introduction of damaging testimony from a defense witness.
The defense called Dale Edwards, the Labor Industries safety compliance officer who investigated the accident scene the day after Williams was killed. During Edwards’s cross examination, the prosecutor repeatedly attempted to ask Edwards if Williams could have prevented the accident, but most objections to this line of questioning were sustained. But the following exchange occurred without objection:
[State]: Based on your opinion regarding this accident, could Sam Williams have done anything to prevent it?
[Witness]: Based on the facts of the report?
[State]: Based on your opinion.
[Witness]: Based on the facts of the report
[State]: Who could have prevented this accident?
[Witness]: The driver of the car.
RP (November 16, 2000) at 135-36.
Later, on redirect, defense counsel asked Edwards if there was more than one cause of the accident. The State objected and the trial court sustained the objection. Outside the jury’s presence, the court explained that Edwards’s expertise was in worker safety, not accident investigation. When the jury returned, defense counsel asked, `did the violation of the regulations endanger Mr. Williams’ safety?’ RP (November 16, 2000) at 139. The State’s objection to this question was overruled and the witness responded that the violation did endanger the victim’s safety ‘[b]y standing in the lane without traffic being stopped. The only time you enter the lane is when traffic is stopped.’ RP (November 16, 2000) at 139.
To establish ineffective assistance for failing to object to improper questioning, the circumstances must be `egregious . . . on testimony central to the State’s case[.]’ State v. Madison, 53 Wn. App. 754, 763, 770 P.2d 662, review denied, 113 Wn.2d 1002 (1989). And if the failure to object could have been legitimate trial strategy, it cannot serve as a basis for a claim of ineffective assistance. See State v. Mak, 105 Wn.2d 692, 731, 718 P.2d 407, cert. denied, 479 U.S. 995 (1986).
From the record it is likely that the trial court would have sustained an objection to the questions above because the prosecutor asked the witness about accident prevention and not worker safety. Initially we note that Edwards was a defense witness and defense counsel was able, on redirect, to elicit testimony from this witness that the victim’s violation of the regulations (by standing in the roadway before traffic was stopped) endangered his safety. Moreover, Workman must prove that the unobjected portion of Edwards’s testimony likely had an adverse effect on the trial’s outcome to establish prejudice. Because it is clear from all the evidence that a reasonable driver would have prevented the accident, Edwards’s testimony did not tell the jury anything new and enabled him to elicit favorable testimony from Edwards on redirect. Defense counsel’s failure to object, if error, was not prejudicial.
Workman received effective assistance from her trial counsel. And the evidence was substantial and clearly established that Workman was driving with disregard for the safety of others when she struck and killed Williams as he worked as a DOT flagger. The prosecutor’s theatrical closing argument included properly admitted exhibits and was designed to demonstrate that the victim was clearly visible to any driver. As such it was neither ill-intentioned nor designed to inflame the passions of the jury, and it did not prejudice Workman’s right to a fair trial.
Thus, we affirm.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HOUGHTON and MORGAN, JJ., concur.